Mercer v. Mercer's Adm'r

| Ky. Ct. App. | Feb 23, 1888

JUDGE HOLT

delivered the opinion oh the court.

Persons claiming to be the devisees under an alleged holograph, will of Felix Mercer, and also claiming that the original had been stolen and fraudulently suppressed by one of his heirs, offered a writing, purporting to be the substance of it, for probate. After being rejected by the county court, it was established by the circuit court; but upon an appeal to this court the *23judgment was reversed, with directions to affirm the judgment of the first-named court. The opinion will be found in 14 Bush, page 434, Mercer v. Mackin.

The only evidence offered to show the execution or •existence, or contents of the alleged will, consisted of the declarations of Mercer ; and as the testimony failed to show its suppression or loss, and there was, therefore, no competent evidence of its execution or contents to be corroborated by his statements, this court ended the case as above indicated. The propounders had hitherto failed to produce any witness to testify that he had ever seen such a will. When, however, the time within which a petition for a new trial may be filed upon the ground of newly-discovered evidence was •drawing to a close, this action was brought for such purpose, based upon the ground, as the petition avers, that a certain party would testify that Mercer had shown him such a will; that he knew it was in Mercer’s handwriting; that he had told him it was his will, and that he (Mercer) had written and signed it; and that he (the witness) read it, and that the paper offered for probate conformed in substance to it. When he came to testify, however, he failed to prove that the writing, which he says he saw, was in the handwriting of Mercer, either as to body or signature. He did not know his waiting. He does not expressly say that Mercer told him he had himself signed his name to it; but he •does testify that Mercer, when speaking of the paper, said that it was his will, and that he had written it. This, by fair interpretation, must be regarded as referring to both the body of the writing and the signature, and as evidence that it was altogether in the handwrit*24ing of Mercer. It had been proven upon the former trial, however, that Mercer said that he had written his own will. Indeed, all that the newly-discovered witness states was then testified to by other witnesses, save no one had seen the alleged paper. There is some other new testimony in-this suit beside that of the witness just named; but it is merely cumulative, as is indeed all of it, unless we except the statement of the one witness as to seeing the paper, but as to the execution of which he knew nothing save from the declarations • of Mercer. Two reasons, however, render it unnecessary to consider whether, in the absence of the paper, the evidence of this witness, who was unacquainted with Mercer’s handwriting, was, under our statute relating to the proof of wills, proper or sufficient evidence of its- due execution.

. First. .It is well-settled that a new trial should not be granted-upon the ground of newly-discovered evidence, unless it be of a decisive character. If it be doubtful whether it would have any preponderating influence upon another trial, then it will not avail to obtain it. (Allen v. Perry, 6 Bush, 85.) Especially should this rule apply where the newly-discovered evidence is parol and relates to a point litigated upon the former trial. If the converse of the rule were adopted, it would protract litigation indefinitely, and often lead to subornation and perjury. In this instance the -witness whose evidence is mainly relied upon to obtain a new trial is of doubtful character; and this very fact forcibly illustrates the wisdom of the rule just alluded to, and furnishes one reason for adhering to it. The evidence shows that his credibility is at least questionable, while *25the testimony of the other new witnesses is not only merely cumulative, but either contradicted by other evidence in the record, or was known to the appellants at the time of the former trial. It is unnecessary to review it in detail, but sufficient to say, that all of the newly-discovered testimony is of such a doubtful and uncertain character, either by reason of the character of the witness or contradiction, that we do not feel authorized to disturb the conclusion reached by the lower court.

In the second place, there is now no additional testimony as to the suppression or theft of the alleged Avill. This court, upon the appeal of the main case, was of the opinion that there was no sufficient eAddence of its fraudulent suppression. After an examination of the record Ave see no reason to think otkerAvise. The only witness whose evidence tends to show it, and that but slightly, is not only an interested party, but of bad character; while the devisee who is charged with the wrong testifies to his innocence, which is to be presumed, and he is sustained by various circumstances.

Admitting, therefore, the existence at one time of a will, properly executed, yet it was last seen in the custody of the testator, and can not now, after due search, be found. Under these circumstances the law presumes that he in some way, animo rewoandi, destroyed it; and there is no evidence in this record sufficient to rebut this presumption. (1 Jarman on Wills, p. 161.) When not produced its loss must be shoAvn, or absence accounted for, or this presumption will prevail.

Judgment affirmed.